The Dark Matter of Our Cherished Document
What you see in the Constitution isn't what you get.
Tribe wants, as he says, to "shift the discussion from whether various constitutional claims are properly rooted within the Constitution's written text to whether claims made in its name rightly describe the content, both written and unwritten, of our fundamental law." His movement away from close-reading the text of the Constitution comes just as some progressive scholars have come to embrace it. But like those progressive scholars, Tribe seeks to distance himself from what conservatives decry as the flabby, results-based decision-making that is parodied by justices like Antonin Scalia as empty lyricism. Scalia's brutal attack on what he dubbed "the sweet mystery of life" passage found in Planned Parenthood v. Casey reveals what happens when constitutional courts wax Shakespearian. That opinion features the famous phrase: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." It's legal language that has launched a thousand snorts.
Tribe, with his background in math and science, is determinedly more earthbound. This is a book about "excavation" and "dark energy" and "double helixes." Tribe is focused not on penumbras in the air, but on the invisible physical matter that connects the words of the Constitution to the constitutional world, the stuff that binds "life" to "liberty" to "property."
Here is an example of how it works: The 14th Amendment provides that no state shall "deprive any person of life, liberty or property, without due process of law." Looking only at the text, says Tribe, one might suppose that the state could punish someone for constitutionally protected free speech so long as it afforded her with the "due process" of a full and fair trial in which to defend herself. This defies common sense, however. And that is why the courts have read due process to include substantive freedom and not just procedural protections. And the substance of what is being protected comprises a part of the "Constitution's invisible dark matter."
In its most whimsical section, the book includes Tribe's hand-drawn renderings of what he describes as six "modes of construction" of the invisible Constitution, including the "geodesic," the "gravitational," and the "gyroscopic." Each of the six models represents either an effort to connect the dots between the visible elements of the Constitution or to explain how the Constitution would collapse upon itself if the invisible portions were not there. Whether this act of pressing the hard sciences into service as models for imagining the Constitution's "dark matter" strikes you as clarifying or obfuscating, what Tribe is attempting here is to impose muscularity, rationality, and structure on progressive constitutional thought. A term like "due process of law" needs to be both unpacked and constrained at the same time, and this is Tribe's project.
Tribe turned his attention away from his landmark treatise in part because while constitutional law is changing at lightning speed, the Constitution is not so much changing as slowly taking form. Indeed, he concludes with an observation nicked from a friend's fortune cookie: "Everything that we see is a shadow cast by that which we do not see." Tribe believes that the modern view of the Constitution, with its protections of personal dignity and equality, are the shadows cast by a much richer, more nuanced document than the text itself would suggest. There are problems with this notion, to be sure, not the least of them being the question of who sees an invisible Constitution, and how justices ready to kill one another over the visible text will ever reach agreement about an unseen one.
In the coming months or years, President-elect Barack Obama will probably name a prominent liberal thinker or two to fill a seat at the Supreme Court. That nominee will be confirmed in an intellectual climate that currently begins and ends in the rigid constraints of textualism and originalism. With The Invisible Constitution,Laurence Tribe asks his readers to dream bigger than that. Not in the interest of promoting any one ideological agenda, although Tribe's progressive preferences are hardly hidden. Instead, he offers a blueprint for reimagining the national constitutional conversation with fuller information about its complexities and internal tensions. He asks us to take the time to figure out what the founding document does rather than nitpicking about what it says. And if ever there were a moment in which liberal thinkers might allow themselves to dream big, this should be it.
Dahlia Lithwick writes about the courts and the law for Slate.